The town held a referendum on the Cape Cod Commission last week, and decided now is not the time to consider withdrawal from the regional land use agency.

It wasn't the referendum backers of a ballot petition were seeking; that one would have taken place during the November election for which all registered voters would have been eligible to have their say.

It was those voters' elected representatives, the town council, who decided the question last Thursday when seven members found the petitioned referendum question without "merit." Councilors Gary Brown, Jim Crocker, Hank Farnham, Jim Munafo, and Harold Tobey were in the minority; Greg Milne was away on a camping trip scheduled long before the council's July meeting date was changed.

The technical phrase "merit" required by the town charter didn't sit well with councilors on both sides who thought the question itself had merit, including some who said it should not be answered while the Commission was trying to implement reforms suggested by the 21st Century Task Force that reviewed its performance.

Another objection raised by councilors was the lack of information presented with the petition.

"I'm not sure that I fully understand what are the merits of this petition," said Councilor Leah Curtis. "There's no rationale attached."

The petition, which was signed by at least 150 registered voters and certified by the town clerk, asked that this question be put on the November ballot: "Shall the Town of Barnstable withdraw from the Cape Cod Commission?"

A Divisive Issue

Last Thursday's drama began with a public hearing that ran just over an hour.

"Give the voters the right to determine whether the town should be out or in," said William Elkins of Centerville, who was echoed by many succeeding speakers.

Others suggested that, with a minimum requirement of 150 signatures to bring a question before the council for consideration for the ballot rather than the much great number required to send it to the voters without the council's involvement, the charter intended that the council would not be simply a rubber stamp in the process.

Some warned against surrendering the protections the Commission could offer the town. Sue Nickerson of Cummaquid, executive director of the Alliance to Protect Nantucket Sound, noted that the proposed Cape Wind turbine project in waters off Barnstable is being reviewed by the Commission now.

Sue Rohrbach of Centerville, a former town councilor and planning board member who serves as an aide to state Sen. Rob O'Leary, recalled the days before the Commission when the town relied on a state zoning act that was "the weakest in the United States" and had "no say about how development in another town affected us."

Supporters of the petition said the Commission had spent millions of dollars without doing its job. "They have failed miserably," said John Julius of Hyannis. Some pointed to the town's relatively new growth management department as capable of handling development here in cooperation with town boards such as planning, site review and zoning.

Developer Don Megathlin of Cotuit, former chairman of the Barnstable Economic Development Commission, called the agency's regulatory process "very time-consuming, frustrating, lacking in fairness, very adversarial." He scoffed at the potential for reforming the agency, saying that "changing the direction of the Commission is like turning a giant ocean liner around."

Peter Fisher of Centerville, however, sounded like he liked the way the ship is being sailed. "Many supporters of the Cape Cod Commission don't think it regulates enough," he said, although noting that "clearly, the Commission is not perfect."

Mark Thompson of Hyannis, who represents Independence Park, called on the council to "give us the right to redress our government" by approving the question for the ballot.

"We have the right to vote," said Chuck Stacey of Centerville, who worked with the town's planning department in the 1980s (and believes withdrawal would "open ourselves to a wave of unplanned and unregulated development"), "but we also have the right not to be suckered."

Frank Paparo of Centerville said the Commission has failed to bring good-paying jobs to the region and has shown no initiative in pounding the pavement to attract and retain the companies the Cape needs. He dismissed the agency's transportation planning efforts as "telling us to ride bikes."

Two visitors from nearby towns offered variations of the arguments they advanced at Yarmouth Town Meeting earlier this year before that body voted to put withdrawal on the ballot next spring.

Brad Crowell of Dennis, former chair of the Cape Cod Commission, said he agreed to serve on the agency with "healthy skepticism.

"In five years, I've come to believe that the Commission passes my test for good regulation -- that the trouble it causes substantially less than the trouble it prevents."

Peter Kenney of Yarmouth, a leader of the withdrawal movement in his own town and an inspiration to like thinkers in Mashpee, Sandwich, Bourne and other communities, said the Commission has made costly errors in its stewardship of the Cape. In 1993, he said, the agency declined to pursue fast-disappearing federal wastewater funds out of fear that their use would unleash a wave of development.

Noting that he has just filed wastewater legislation that could aid the Cape, O'Leary said "a vote like this would have a chilling effect" on efforts to convince legislators to approve a special status for the region.

O'Leary spoke of the "enormous undertaking" both here and on Beacon Hill that led to the creation of the Commission, an achievement that could be toppled by one town's decision.

"Barnstable is the signature community," he said. "This threatens the ultimate existence of the organization and impacts every other town."

The process of withdrawal is murky, said the senator, adding that he's been talking to the attorney general and others about this. "One suggested that before a town could leave, it might require a Capewide referendum," he said.

The Council Decision

When it came time for the councilors to have their say, they wanted Town Attorney Bob Smith to explain whether they were voting on the merits of the form and process the petitioners had followed, or on the content of the petition. He reached back some years to a similar 150-voter petition that had called for the town to require that a questionnaire be completed by all young women seeking an abortion, a multiple-choice design with questions like, "I do not want to have my baby because it could be ugly."

When he received that petition, Smith said, he realized it was not his responsibility to try to wrestle its language into a legal and constitutional framework, and that it was up to the council to determine the merits of its contents. The council did not approve that petition's merits.

Last Thursday, two councilors who had told the Patriot last week that they would likely vote to put the Commission question on the ballot announced that they had changed their minds.

"I've been flip-floppin' on this thing for two weeks," Councilor Rick Barry admitted. The attorney said he had been before the Commission and had "a bad experience. It wasn't the regulations; it was the people implementing them."

But membership in the agency has benefits to the town, he added.

"If we leave the Cape Cod Commission, we'd no longer be involved in the regional policy plan for the Cape," Barry said. He cited regional wastewater planning and continued functioning of the downtown Hyannis Growth Incentive Zone as activities requiring continued participation.

"None of us fully understand the consequences of this petition and what it will mean if it goes to the ballot," said Curtis. That said, she continued to stress the need to revisit the town's relationship with the agency, given the "sophistication" of Barnstable's staff regarding growth and development issues.

Munafo called the petition "ill-timed and ill-advised. I don't believe the petitioners have any gravitas." Nevertheless, he said the matter should to go to the ballot "because the question has been asked in the community so many times."

Farnham said the night's vote "wasn't about the pros and cons of the Cape Cod Commission," but rather the citizens' right to vote. He said he'd received calls from people on both sides of the issue who threatened never to vote from him again depending on his decision.

Tobey made the matter a civil rights issue, noting that, "A hundred years ago, my people didn't have the right to vote. We fought hard to get the right to vote."

Later on, that brought a rejoinder from Councilor Jan Barton, whose remarks referred to women not being granted the right to vote also. On the question of the night, Barton said Barnstable has a representative democracy. "We represent the entire town," she said, and are elected to vote on such matters as the petition.

Crocker said he resented suggestions that voters would not understand what they were deciding.

"The sky will not fall," he said. "The voters will make a good call. I don't believe they will withdraw."

Council President Janet Joakim, who said the placement of a sign advocating withdrawal in front of the BJ's box store in Hyannis "says a lot in itself," urged advocates to do their homework on the consequences of leaving the Commission.

Organizers of the petition drive are considering gathering signatures several thousand signatures to force a special election timed to coincide with a withdrawal vote in Yarmouth next spring, when several other communities may take up the question as well. One of them, Larry Wheatley, is leaving town to move to Mashpee, where he intends to advocate for withdrawal by that community.

How they voted

On the merits of the question, "Shall the Town of Barnstable withdraw from the Cape Cod Commission," five councilors voted in favor and seven against. The measure failed.